SERGIO OSMEÑA, JR., PETITIONER, VS. SECRETARY OF JUSTICE, JOSE S. AMADORA, FISCAL, CITY OF CEBU, HON. GUILLERMO P. VILLASOR, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF CEBU, BR…

Petitioner is accused of violation of the Anti-Graft and Corrupt
Practices Act in connection with the Cebu Reclamation
Project, by virtue of an information filed on March 1, 1966, in Criminal Case No. V-10874
of the Court of First Instance of Cebu.  The case was assigned by means of raffle to
Branch II of said court, then presided over by Judge Amador E. Gomez. Having
previously decided the civil case involving the project in question, which is
also the subject-matter of the anti-graft case, upholding the legality of the
said project, Judge Gomez voluntarily disqualified himself on April 22, 1968, from hearing the
criminal action.

A re-raffle was
held, as a result of which the
case was assigned to Branch I of the court, presided over by respondent Judge
Guillermo P. Villasor.  At the arraignment on September 25, 1968, petitioner entered a plea of
not guilty.

Thereafter, the Circuit Criminal Court of Cebu
was organized.  Criminal
cases pending before the different branches of the Court of First Instance of Cebu belonging to the category of cases enumerated in RA No. 5179, which may be taken cognizance of by the Circuit Criminal
Court, including the anti-graft case hereinbefore mentioned, were raffled
pursuant to Administrative Order No. 258
of the Secretary of Justice, dated September 11, 1968, with the end in view
of transferring thirty (30) of
such cases to the Circuit Criminal Court of Cebu to
constitute the latter’s initial cases The result of that raffle (the third for
this case) was that the case was to continue to pertain to Branch I, presided
over by Judge Villasor.

Thereafter, Judge Villasor set the case
for hearing several times; but each time a postponement was had upon repeated
motions of the prosecution headed by respondent Fiscal Jose S. Amadora.  Then on January 14, 1969, just before the
scheduled hearings which had been re-set for
January 28, 29, 30 and 31, 1969, the said Fiscal filed
a motion to transfer the case to the Circuit Criminal Court.  This move was opposed by petitioner.  Judge Villasor
denied the motion on the ground that, in accordance with the raffle held for
distribution purposes, the aforementioned anti-graft case was to be retained by Branch I,
presided over by him.  Hearing was set
for March 21, 1969.

On the day of the trial, respondent Fiscal Amadora
obtained another postponement by virtue of a telegram from the Undersecretary
of Justice, which was shown to the Presiding Judge, ordering another raffle of
that one case so as to transfer it to one court – the Circuit Criminal Court.

The trial of the case was
re-set again for April 28 and 29,
1969.  Respondent Fiscal filed a
second motion to raffle the case for transfer to the Circuit Criminal Court,
for which reason the hearing of the case was again suspended.  Then the Secretary of Justice issued
Memorandum Circular No. 53 of July 22, 1969, authorizing the transfer to the
Circuit Criminal Courts of all anti-graft
cases pending in all Courts of First Instance, actual trial of which had not yet
been commenced.

Petitioner persisted in his objection to the transfer of the
case.  He was given time by respondent Judge Villasor
within which to seek a reconsideration of Memorandum Circular No. 53 of the Secretary of Justice;
otherwise, the anti-graft case in question would be transferred to the Circuit
Criminal Court.

On September 12, 1969, Fiscal
Amadora filed another motion (urgent) to transfer the
case to the Circuit Criminal Court so that trial could be held immediately; but
on September 19, 1969, respondent Judge Villasor issued an order voluntarily inhibiting himself from hearing the
case and directing “the Clerk of Court to take up with the Executive Judge
the matter of re-assigning this case in the usual manner among the other
branches of this Court.”

In the meantime, or on September 8, 1969, petitioner, thru his
counsel, asked the Secretary of Justice, in writing, if the Anti-graft case in
question was covered by his
Memorandum Circular No. 53; and on September 15, 1969, the Secretary of Justice replied to the effect that his
aforesaid circular did not have “the least intention of singling out any
particular case, much less criminal case No. V-10874.
x x x Indeed,
as this Department said in a letter dated February 5, 1969
to Fiscal Amadora: ‘The Department finds no
sufficient reason to authorize the transfer to the Circuit Criminal Court of
the particular case (No. V-10874) mentioned in (your) request.  On the other hand, if the Circuit Criminal
Court would not object to the transfer of additional cases in excess of the 30
already transferred, this Department would authorize the transfer by raffle of
such number as would be agreeable to the Court.” However, this case was
transferred just the same without benefit of raffle, pursuant to a memorandum
circular, dated January 26, 1970, signed by all the judges of the Court of
First Instance of Cebu, except Judge Villasor, executed “[i]n the light of the intentions of
Memorandum Circular No. 53 of
the Department of Justice,” directing all Branch Clerks “to turn over
to the Clerk of Court, in order to effect the transfer to the Circuit Criminal
Court of all cases involving violations of the Anti-Graft and Corrupt Practices
Act and violations of the Tariff and Customs Code and Sections 174, 175 and 345 of the National Internal Revenue
Code, pending in our Salas, the
actual trial of which has not yet been commenced.” The case is now
docketed in the Circuit Criminal Court of Cebu as
Criminal Case No. CCC-XIV-47.

Petitioner moved on September
25, 1969, to reconsider the order of voluntary
disqualification of Judge Villasor because
it was not based on any legal ground; but the same was denied in an order of January 30,1970.  Thereafter, respondent Judge Francisco Ro. Cupin of the Circuit Criminal Court scheduled the trial of
the anti-graft case
for June 1, 2, 3 and 4, 1970.

On April 10, 1970,
petitioner moved for the return of the case to Branch I of the Court of First
Instance of Cebu, and for the cancellation of the
scheduled dates of trial on June
1, 2, 3 and 4, 1970; respondent Fiscal opposed. 
On June 1, 1970, respondent Judge Cupin
of the Circuit Criminal Court denied petitioner’s motion and ordered the trial
to proceed as scheduled June 2, 3
and 4.  He likewise denied the opposition previously
filed by petitioner to the appearance of a private prosecutor in the case.

It is in this factual backdrop that petitioner came to this Court
by means of the present special civil action of certiorari, prohibition
and mandamus, praying that Judge Villasor’s order of voluntary inhibition be set
aside; that the order for the reassignment and/or transfer of Criminal Case No. V-10874 to the Circuit
Criminal Court, as well as Memorandum Circular No. 53 of the Department of Justice insofar as it concerns the
present anti-graft case, be annulled; and that the order of the Circuit
Criminal Court scheduling trial of the case and denying petitioner’s opposition
to the appearance of a private prosecutor be likewise annulled.  Petitioner
also prays that the case be returned
to the Court of First Instance of Cebu, and that
Judge Villasor be ordered to resume or continue
taking cognizance and jurisdiction of the
same.  Finally, petitioner seeks issuance of
a writ of preliminary injunction
against Circuit Judge Cupin, enjoining him, in the
meanwhile, from proceeding with the trial of the anti-graft case against
petitioner.  On June 16, 1970, we issued a temporary restraining
order.

The issue of whether or not Judge Villasor
abused his discretion in
voluntarily inhibiting himself from the trial of the anti-graft case against
petitioner has become moot and academic by virtue of his transfer from Cebu to Manila.

We come to the
more substantial issue of whether or not the transfer of the present anti-graft
case to the Circuit Criminal Court of Cebu was in
excess of jurisdiction or in grave abuse of discretion.

The transfer was effected by virtue of a memorandum circular, dated January 26, 1970, signed by all the
judges of the Court of First Instance of Cebu except
Judge Villasor. 
The said circular itself states that
it was made “[i]n
the light of the intentions of Memorandum Circular No. 53 of the Department of Justice.”
The memorandum circular therein mentioned,
dated July 22, 1969, authorizes the transfer to the circuit criminal courts of all anti-graft
cases pending in all courts of
first instance, actual trial of which
had not yet been commenced.  In
directing their respective Branch Clerks to turn over to the Clerk of Court
certain cases – including the present case – for transfer to the Circuit
Criminal Court of Cebu, the judges were, therefore,
in large measure, if not entirely, motivated by Memorandum Circular No. 53.

In People vs. Gutierrez, etc., et al., L-32282-83, November
26, 1970, we said:

“We agree with
respondents that the present laws do not confer upon the Secretary of Justice
power to determine what court should hear specific cases.  Any such power, even in the guise of
administrative regulation executive affairs, trenches upon the time-honored
separation of the Executive and the Judiciary; and while not directly depriving
the courts of their independence, it would endanger the rights and immunities
of the accused or civil party.  It could be much too easily transformed
into a means of predetermining the outcome of individual cases, so as to
produce a result in harmony with the Administration’s preferences.  The creation by Republic Act No. 5179 of the Circuit Criminal Courts
for the purpose of alleviating the
burden of the regular Courts of First Instance, and to accelerate the disposition
of criminal cases pending or to be filed therein, nowhere indicates an intent
to permit the transfer of preselected individual
cases to the circuit courts.  Neither do
Administrative Orders Mos. 258 and 274 evidence any such intention;
particularly since Administrative Order No.
258, Series of 1968, in Section 2 of its Part V, as confirmed by Administrative Order No. 274 of the same year, in Section 3 of Part III thereof, provides that
the transfer to Circuit Criminal Courts of cases pending in the regular Courts
of First Instance should be effected by raffle, chance here operating to
nullify any executive arbitration of what particular
cases should be apportioned to either
tribunal. x x x.”

While Memorandum Circular No. 53 of the
Department of Justice does not, on its face,
single out the anti-graft case against
petitioner, the peculiar facts surrounding
the transfer of said case
to the circuit court lead to no other
conclusion than that the transfer was in effect one of a preselected
case.  Note that although petitioner was arraigned way back on September 25, 1968, before Judge Villasor,
who set the case for trial several
times, trial had to be postponed each time on motion of Fiscal Amadora. Note also that even if the raffle held pursuant to Administrative Order
No. 258 resulted – as Fate would have it
– in the retention of the case by the court of first instance, the said court,
much as it
wanted to, could not proceed to
trial because on the date scheduled therefor, Fiscal Amadora again obtained a postponement by flashing in open
court a telegram from the Undersecretary of Justice ordering another raffle of
the present anti-graft case for transfer to the circuit court.  We join petitioner in wondering how chance
could come into play by raffling one case in one court for transfer to another
court.  The postponement was followed by the filing of another
motion to raffle the case for transfer to the
circuit court, which again resulted in the suspension of the trial.  Thus, when Memorandum Circular No, 53 was issued a few months thereafter,
or on July 22, 1969, authorizing the transfer to the circuit criminal courts of
all anti-graft cases actual trial of which
had not yet been commenced, the necessary
groundwork had already been laid to ensure that the anti-graft case against petitioner
would be among those that could be transferred to the circuit court on the
strength of the circular; the repeated postponements of the trial of the case
on the Fiscal’s motions had seen to that.

Although on September
15, 1969, in answer to petitioner’s
query as to whether or not the case against him was covered by Memorandum
Circular No, 53, the Secretary of Justice assured petitioner that if more cases
would be transferred to the circuit court, the cases to be transferred would be determined by raffle, no such raffle ever took place.  What came next – after Judge Villasor had inhibited himself on September 19, 1969 was the circular of the other
judges which, far from giving weight and effect to the abovementioned assurance
of the Secretary of Justice, in effect accomplished in one broad sweep what,
previously, chance could not bring about. 
Indeed, it did little to
accord respect to the valid order of Judge Villasor
wherein he had expressly contemplated the re-assignment of the case “in
the usual manner”–meaning by raffle–“among the other branches of
this Court.” This, apparently, is the reason why Judge Villasor
could not, in conscience, give his imprimatur to his colleagues’ circular.

Considering that the repeated postponements, on the Fiscal’s motions, of the trial of Criminal Case No.V-10874
of the Court of First Instance of Cebu, were
obviously intended to place the case within the coverage of what later came out as Memorandum Circular
No. 53; that the memorandum circular signed by the
judges was made [i]n the light of the intentions of
Memorandum Circular No. 53;” that
the Secretary of Justice, from whose Office the said memorandum circular
emanated, had expressly stated – in connection with petitioner’s case – that
any transfer of additional cases to the Circuit Criminal Court of Cebu pursuant to Memorandum Circular No. 53 would be determined by raffle; that
contrary to such official commitment
no raffle was held; and that no serious and weighty reasons similar to those which prompted this
Court in People vs. Gutierrez, etc., et al., supra, to exercise its
inherent power to decree the
transfer of trial from one court to another, obtain in the instant case, we
hold that the transfer of Criminal Case No. V-10874 from the Court of First Instance
of Cebu to the Circuit Criminal Court is null and
void.

The remaining issue before us relates to the denial by respondent
Judge Cupin of the Circuit Criminal Court of petitioner’s
opposition to the appearance of Atty. Vicente S. del Rosario as a private
prosecutor in the anti-graft case in behalf of Mr. Manuel O. Ponce. The Judge
denied the opposition on the ground that the information alleges that damages
have been caused to Mr. Ponce.

Judge Cupin must have in mind charges
Nos. 1 and 2 of the information.  Under
the first charge, petitioner is alleged to have violated Sec. 3, par. (e), of RA No. 3019, i.e., causing undue injury to
any party, including the Government, in that petitioner, taking advantage of
his position as Mayor of Cebu City, “Committed
acts of harassment and embarassment against said
Manuel O. Ponce by (a) ordering the prosecution of said Manuel O. Ponce by the
City Fiscal of Cebu for the violation of building
ordinance of Cebu City; and (b) other ordinances that
took place more than ten (10) years ago, by ordering thru Secretary of Health,
Manuel A. Cuenco, who obtained his appointment on such
position thru accused’s political influence, the
exhumation of the dead body of the wife of said Manuel Ponce, despite the fact
that it was legally buried more than a year ago in the Ponce Island, the manmade
island constructed with great sacrifice of said Mr. Ponce and his family, and
finally causing the destruction of said island to the tremendous financial and
material losses of said Mr. Ponce by having said island buried under silt and
mud by the dredging operation of the Dillingham dredging machine rented by said
Cebu Development Corporation and Essel,
Inc., in the Cebu Reclamation area.” Under the
second charge petitioner is alleged to have violated Sec. 3, par. (f), of the
same law, in that he neglected or refused, after due demand or request, without
sufficient justification, to act within a reasonable time, by preventing “Manuel O.
Ponce from securing a Mayor’s permit to exercise his calling or profession as
boat builder for the year 1965 in order to drive him out of the Ponce Island,
which was badly coveted by the accused, being included in the area of the Cebu Reclamation Project, where said Mr. Ponce was having
his dry-docking, boat building and other business,” for the purpose of
favoring petitioner’s own interest or giving undue advantage to another
interested party.

Since we have already held above that the order transferring the
present anti-graft case to the Circuit Criminal Court is null and void, it
follows that all proceedings had before the said court – including that in
connection with Judge Cupin’s order denying petitioner’s
opposition to the appearance of a private prosecutor – are likewise void and of
no legal effect.  It is therefore
unnecessary for us for the present purpose to pass upon the legality of such
order.  Considering, however, that
proceedings will have to continue in the Court of First Instance of Cebu after the return of this case to that court where this
same issue may again crop up, it becomes incumbent upon us to make a ruling
thereon for the guidance of the parties and the court below.

It appears that Manuel O. Ponce has previously filed two civil
cases against petitioner in connection with the Cebu
Reclamation Project.  In
one of them, Civil Case No. R-7978, Manuel O. Ponce, et al. vs. City of Cebu, et al., Mr. Ponce lost in the Court of First Instance
of Cebu, which held Mr. Ponce and the other
plaintiffs to “have no personal interest that stands to be affected by the
reclamation work undertaken by the herein defendants,” because Ponce
Island “is
definitely within the foreshore area over which the City of Cebu has unquestioned authority to reclaim under Republic
Act No. 1899.” In the other case, Civil Case No. R-9455, Manuel O. Ponce, et al vs, Sergio Osmeña, Jr., et al.,
the same court, in a decision which is now on appeal to this Court absolved Osmeña from liability and
dismissed “the complaint for damages and insofar as the reclamation
by the defendants of the foreshore proper which includes the Ponce Island is
concerned.” The filing of those cases by Mr. Ponce was a positive step
toward the protection of his interest and the recovery of indemnity from
petitioner.  On account thereof, and
considering that whatever injury or loss Mr. Ponce may have personally suffered
from the acts of petitioner alleged in the present information could only stem
from his right
to Ponce Island, over which, as already stated, Mr. Ponce has already filed two
civil cases, it must be concluded that he has no more interest of a civil
character to protect in the present criminal proceedings.  Respondents shield themselves behind the
terse argument that “in cases of violation of the Anti-Graft and Corrupt
Practices Act the offended party is really the entire populace and not only the
Government.”  Even assuming that Mr.
Ponce is an offended party in the present case on account of the allegations of
the information earlier referred to and quoted, he lost his right to intervene
when he instituted the two civil actions in court, because by so doing his
special interest in the criminal case had disappeared (Gorospe,
et al. vs. Gatmaitan, et al., 99 Phil., 600, citing People vs. Velez, 77 Phil., 1026, and People vs. Olavides, 80
Phil., 280). In the premises, the appearance of a private prosecutor on behalf
of Mr. Manuel O. Ponce has become indefensible.

WHEREFORE, the order transferring
Criminal Case No. V-10874 of the Court of First Instance of Cebu to the Circuit Criminal Court is declared
null and void; all proceedings had before the said circuit court in its Criminal Case No. CCC-XIV-47 particularly the order of June 1, 1970, are likewise declared null and void; and respondent Judge Francisco Ro. Cupin
is ordered to cause the return of the said case to the Court of First Instance
of Cebu for another
raffle, together with other
cases from the different salas thereof, for the
purpose of assigning additional cases
to the Criminal Circuit Court presided over by him, in accordance
with Memorandum Circular No. 53 of
the Department of Justice.  No pronouncement as to costs.

Concepcion, C.J., Dizon,
Makalintal, and
Zaldivar, JJ., concur.

Reyes, J.B.L., J., concurs with
this opinion and that of Justice Barredo.

Castro, J., concurs in the
opinion passed by Justice Villamor and in the second paragraph of the concurring opinion
of Justice Barredo.

Fernando, J., concurs in the opinion and in the second paragraph
of the concurring opinion of Justice Barredo.

Barredo, J.,
concurs in separate opinion.

Teehankee and Makasiar, JJ.,
no part.